Biased Jury Selection and the Unjust Justice System

After the past year of Black Lives Matters (BLM) protests, one of the early cases of police brutality finally makes its way into trial. Check out this article about the jury selection in the prosecution of the “former Minneapolis police officer who faces second-degree murder and manslaughter charges in the death of George Floyd.” Did you notice the makeup of the jury? “The seven jurors consist of three white men, one white woman, one Black man, a Hispanic man and a multiracial woman.” That one sentence says a lot about what we might expect, but one should pay attention to the other details given. The piece is fairly decent reporting, although even greater detail would’ve been preferable, as what goes unstated speaks loudly.

In case one has been living in a cave and is unfamiliar with this incident of police brutality, it should be noted that the victim was a black male and the defendant is a white male, the latter being a person intentionally left unnamed here as he deserves to be forgotten beyond his status as an anonymous figure of an unjust system of racial and class oppression. One might add, to be fair, that there have been plenty of non-white women and poor whites who also have been targeted by police (in fact, combined they form the majority of such incidents), if they don’t receive the same attention in the corporate media and political discourse, unfortunately but as expected.

Right from the start, there is a bias in what is reported in the ‘mainstream’ news and what is ignored. For various reasons, the “black male” has been chosen as the stereotypical stock character for the controlled narrative agreed upon by the media and political elite. Rather than the authoritarian system being on trial, it becomes a debate within the white patriarchy about which male bodies are of value and which can be sacrificed (the bodies of women and poor whites being less directly relevant to the system of power as defined). The tricky part is that the white patriarchy, in order to maintain its rule, must present itself as if it doesn’t exist. So, the real debate is whether this guardian of the white patriarchy overstepped the respectable bounds of allowable oppression in making violence too blatant to be rationalized away according to the ruling rhetoric of perception management.

Anyway, the jury consists of five men and two women. And that includes at least four whites, one non-white, and two others who might or might not identify as white to some extent. Even the one black is an upper middle class professional. None of these people appear to be either poor minorities or to otherwise be typical victims of systemic prejudice and violent oppression. There is no evidence that any of these jurors have had personal experience or direct witnessing of police profiling, police brutality, etc. There is no evidence that any of these jurors lives in an impoverished and segregated neighborhood that has been treated as a war zone with militarized policing, along with racial profiling, school-to-prison pipelines, mass incarceration, etc. Their perception of these issues is, therefore, likely to be mediated secondhand through the ruling narratives of corporate media and so would carry predictable biases.

Basically, it’s mostly a jury of men and whites, and probably mostly middle class. Yet there is no place in the entire country where the majority of the population consists of middle class white males. Since this officer is a middle class white male, does a jury of peers mean everyone else also should get a jury of their peers as defined by their own demographics of identity politics? If that were true, then why don’t most female defendants, most non-white defendents, and most poor defendants get juries consisting mostly of women, non-whites, and the poor? Heck, maybe more than the defendant it is the victim, as a silenced and opressed minority, who needs and deserves a jury of peers or, failing that, a jury representing the fuller spectrum of the American population — assuming this legal system is a justice system.

With that in mind, it’s telling that there was not a single juror who didn’t have some pro-police sympathy, even among the few that nominally agreed that black lives matter. What really stood out was that apparently not a single juror agreed with the BLM message that police departments are systematically racist and need to be reformed, even though that specific BLM message is supported by the majority opinion of Americans in diverse polling, even from Fox News. This seems like a case where the moral majority and demographic majority was pre-selected to be excluded from the jury, whether consciously and intentionally or simply through in-built biases. As the American public, we really need to publicly understand why this happens, but that would require the possibility of actual public debate, the one thing that the ruling order can never allow.

Here is the problem, in practical terms. Even if this unrepresentative jury comes to a guilty verdict, as it might, it’s unlikely to be the strongest verdict they could come to, as it’s clear they are going into this with a probable tendency to side with the police in at the very least offering the benefit of the doubt, as based on the normative assumption that the official authority of police violence is to be assumed justified until proven unjustified (a normative assumption not shared by many other Western countries where police violence is less accepted as a normalized fatalistic inevitability). The officer is likely to get a slap on the hand or some extremely minimal sentence. This jury, like the elite that helped select them, appears to be to the right of the general public. They may not be far right and so might have less imbalance than in other cases. But why does the elite system always somehow manages to define the ‘center’, the ‘moderate’, the ‘reasonable’, and the ‘normal’ as being on the right?

Biased jury selection and the scripting of trials, as part of narratized social reality, is a great example of how perception management as propagandistic mind control (and hence social control) is enacted in practice. It’s similar to how the corporate media and corporatist parties get to select which candidates are allowed to participate and which excluded (as silenced into disenfranchised non-existence within public perception) in televized political debates during presidential campaigns. This kind of process is so subtle as the public only sees the end product, but not how the sausage is made. The establishment system of the status quo operates invisibly, as a default mechanism of how the system is designed. The results, within a narrow range, are largely predetermined or constrained. It’s yet another way that democratic self-governance is made impossible, not only in socipolitical reality but also in public imagination.

Doing a web search on jury selection bias, a massive amount of results come up, not limited to articles but also academic papers and scientific research. It’s been a heavily studied area, as one would expect. It’s the type of thing that could be used as a topic for a lengthy analysis in exemplfying a larger system of corruption and injustice; but the motivation to do so is lacking and, instead, we’ll keep it as a more casual commentary. Still, one could support all of the claims made here with endless evidence, not that it would make any difference and not that any new insight could be added to the vast literature already written over the decades. Anyone here visiting this blog is likely part of the silenced majority who was not invited to the table of power. This post is not going to shape the debate and decisions at the elite level. Still, we should continue to speak truth to power, if only screaming into the void or preaching out in the wilderness, as we never know what might finally break through the silencing.

This topic makes one think of a lot of things about our society. We know about problems of racism, inequality, corporatism, corruption, climate change, etc. Most Americans, typically a large majority, understand these problems and agree we should do something about them. Also, the scholarship in these fields often shows a consensus among the experts. Yet, the ruling elite ensures that nothing ever changes. And the corporate media never allows much public debate about it. It feels so disorienting. It creates a schizoid experience of reality, what one knows in one’s experience and in relating to other Americans versus what one is told is true in the dominant media and politics. Another trial about injustice can feel like yet more spectacle to distract us with no repurcussions for the system of injustice, no matter the outcome of the trial itself. At best, this individual police officer could be prosecuted and, at worst, he could be made into a scapegoat. This could be taken as further proof of our powerlessness, if we let it stand without challenge and without voicing protest.

3 thoughts on “Biased Jury Selection and the Unjust Justice System

  1. I believe your critique should be geared towards the lawyers who are specialized in interpreting the law, if you find a person high enough on the hierarchy who can adopt your views and reform them using legal lexicon that would facilitate concrete change.
    Nonetheless I doubt any change would happen without public pressure.

    • Good morning! My critique isn’t exactly new and unique, although I put my own spin on it in terms of context. There is one scholarly book, Kwame Anthony Appiah’s The Honor Code, that argues moral change happens slowly. He points out that the anti-slave arguments during the American Civil War were already widely understood and supported before the American Revolution. Like now, there probably long had been a moral majority that was a silent majority. But until public opinion takes hold in public perception, it is denied the status as social fact and remains impotent.

      That is why most progress happens across centuries. It takes many generations to advocate and struggle for some moral change, political reform, etc that never see any result or benefit from their personal actions and collective organizing. As such, the Civil War was simply the unresolved issues of the American Revolution, which itself was a carryover from the still simmering conflict of the English Civil War, which had first erupted as irrepressible class war during the English Peasants’ Revolt. The basic complaints and criticisms had been developing for a long time, but the outward forms of social order change slowly.

      With that in mind, we can expect to have a reasonably just legal system sometime over the next few centuries. It might take some more revolts, revolutions, and civil wars. But the end result is almost inevitable. Justice delayed may be justice denied, but justice eventually prevails as the moral arc bends toward a moral vision as powerful attractor. The way of thinking expressed in this post is slowly seeping into the general culture and public mind, moral imagination and political debate. As everyone knew slavery was wrong generations before it was abolished, everyone for generations now has known our legal system is unjust.

      The conditions are in place for the next stage. All that is needed is something to trigger the change through mass movements, civic unrest, and/or political action. It might not require violence, though. Part of it is how public perception changes. The abovementioned book uses as another key example the way dueling fell out of favor and became legally banned. Going back to feudalism and maybe earlier, dueling was a practice limited to the aristocracy. Poor people fought and wrestled, but only gentlemen dueled. This was enforced by law, such that any low class people caught dueling would be punished.

      It had for centuries been maintained as part of the respectable culture, social order, and legal system. Yet, since the beginning of the Enlightenment, the arguments against it had been developing and public opinion had been shifting against it. Still, it took centuries to finally end as a legal practice. What finally brought that change? The elite had lost control in monopolizing the practice. Maybe it was the rise of a middle class aspiring to respectability. In any case, dueling became more common and so began to be perceived as low class. The elite withdrew their support and legal bans were passed. No new argument had to be made, as the arguments against it were already in place long before.

      This is why, in the end, I’m not a disgruntled cynic and apathetic pessimist. Ever since the Axial Age began and the revolution of the mind was unleashed, there has been one major period after another of moral reform and social transformation. Each time, it takes centuries to form and gain momentum before finally erupting as if out of nowhere. It’s like there was a psychic earthquake three millennia ago with the collapse of the Bronze Age and following it has been recurring aftershocks and tidal waves. One suspects we are overdue for another shaking of foundations and tectonic realignment.

      When that happens, all of these arguments against injustice will suddenly leap into public debate with an irrepresible moral force. The elite actors will suddenly take it seriously and the elite media will obsess over it, as if they had discovered something new. No respectable person will be able to deny it as it becomes a social fact. Then we’ll see lawyers, along with other figures of authority and expertise, standing up and getting heard. They will repeat the same old arguments that had been circulating around for generations, but the arguments will then be made respectable. Once the process is initiated, the following changes in laws and norms would likely happen quickly and easily.

      Knowing the predictable pattern of historical progress, this is why I wrote, “This post is not going to shape the debate and decisions at the elite level. Still, we should continue to speak truth to power, if only screaming into the void or preaching out in the wilderness, as we never know what might finally break through the silencing.” I’m operating at the stage prior to what happens at the elite level. What I’m hoping to promote is further moral shift in public opinion, the public mind, and public imagination that will force into existence a new social fact.

      Then and only then will the elite feel compelled to respond. But that underlying moral force has to first become overwhelming in weakening the supports of the status quo. The elite need to feel their power and position is precarious, as the social system destabilizes, in order to incentivize their acceptance of reform. We have to force them to do the right thing. A single blog post means little, but where the power comes from is millions of Americans writing in blogs, speaking their minds on social media, sending letters to the editor of their local newspapers, and talking with family and friends, neighbors and coworkers. It becomes a chorus of voices. The final trigger can be random.

    • In my view, public opinion is the soul of the body politic. And that body politic is a sleeping giant. That is why to speak of a “moral majority” is such powerful rhetoric. There is a reason that the moral minority of reactionaries, back in the 1980s, realized the influence they could sway by creating a false narrative of their representing the social norm that was under siege. It was bullshit, but these social dominators had a true insight in realizing the moral majority was a potent force, both in reality and in rhetoric.

      American government has always justified its existence based on a presumed social contract of a public mandate that expresses public will. This also has been co-opted by social dominators. Yet the basic truth remains. Various founders made similar points. It was John Adams that spoke of a revolution of the mind and sentiments that preceded the revolution of war and politics, and he was not a man of radical bent in the slightest. Decades after the founding, Jefferson wrote in a private letter that the republican government had failed because of ignorance and misunderstanding, but that republicanism lived on in the spirit of the people.

      That is an old way of thinking. One can sense a resonance in Jesus’ preaching of the Kingdom all around us, along with many Axial Age prophets proclaiming a kinship of humanity based on one Kosmos or Creation, one God or Truth; and so offering a promise of universal salvation or enlightenment. These were the first records of the egalitarian ideal and often with a populist edge in critiquing claims of hierarchical authoritarianism and elite authority. In the early Jesus movement, the moral force of the Word, of the Holy Spirit moved through the people; not through government or other wordly institutions.

      So, the Christian Church did not consist of a church as building but as a community of the faithful who collectively were the Body of Christ. This was emphasized by early Christianity that remained an oral tradition for many decades before being written down. That oral culture would’ve maintained more lingering elements of the bicameral mind with stronger traditions of voice-hearing, probably related to phenomenon like ecstatic dance and talking in tongues. And that in turn related to the egalitarian impulse such as what Stephen J. Patterson writes of the forgotten creed.

      It was not only that the early Christians believed, for example, that there was no male and female for they went further by acting accordingly. Like women, Christian men let their hair grow long. And like men, Christian women let their hair flow freely. Then they danced together as equals, the individual identity lost in a communal experience. Ecstatic religiosity always tends toward the egalitarian. That is why, when ecstatic Christianity returned in the US with the periods of Great Awakening, it became associated with women and slaves (as also was true of early Christianity).

      In that context, even though the corporate media and the corporatist politicians prefer to focus on trials about men, the Black Lives Matter movement has largely been led by women, of course mostly minorities. The Western tradition of protest also has origins in ecstatic religion as it formed out of Carnival and similar communal celebrations that, in centuries past, sometimes erupted into revolt.

      In a recent conflict over defining violence, I bristled at the victims of violence being scapegoated. Left-wing protests are portrayed as violent, even when the violence was committed or incited by militaristic police, right-wing counter-protesters, unidentified provocateurs, etc. That pisses me off. The reason such false rhetoric is used to discredit and dismiss protest movements is because they are part of an ancient egalitarian tradition that always has been expressed through collective action, whether dancing in churches or dancing in the streets. Revelry is rebellion and this is understood by those upholding authoritarian systems of social order.

      A court case, as part of the system of social control, is the complete opposite of a left-wing protest. The purpose of the legal system is, first and foremost, to legitimize the official institutions of hierarchical authority. The actual victim, the black guy killed (along with the millions of others harmed, imprisoned, etc), is erased from the narrative. Instead, it becomes framed within the very system of authority that created the conditions of victimization. The focus is on whether a police officer went too far, not on whether the policing system is unjust and corrupt in systematically putting sociopaths into positions of power and then indoctrinating them with authoritarian ideologies.

      There is a deeper moral clash of ideological worldviews going on here. The conflict between the BLM protest movement and the police state resonates with the conflict between the early Jesus movement and the Roman Empire (think of the provocative and Carnival-like triumphal march into Jerusalem with Jesus’ claim of divine mandate as messiah-king). Indeed, American blacks have some of the highest rates of religiosity in the country, specifically within Christianity, and the various black-led civil rights movements have always had a strong religious component (the FBI targeted the charismatic Fred Hampton for elimination in fear of the rising up of a “Black Messiah”). Religiosity and radicalism are twin forces. The underlying dynamic within the collective psyche keeps repeating an ancient pattern.

      All of this kind of thing typically goes unstated in American debate. It’s not mere politics or mere legality. A trial like this seeks to take the moral punch out of populist outrage. It is a scripted and staged morality play that is narratized according to the dominant ideological realism. The radical challenge is captured and neutered with the entire process and its outcome careffully orchestrated to achieve the desired affect in public perception management. The biased jury selection is one of main tools in the process because the jury is scripted in its role as representing publc mandate and so is used to silence actual public opinion and obscure actual public outrage. It’s highly controlled and managed political theater to give an outlet for melodrama as public entertainment and distraction.

      On some level, one suspects that most Americans understand what is going on and how they are being manipulated, understand the injustice and corruption of it all. But for the average person, this is only an inkling at the back of their minds that is hard to hear over all the noise of our heavily-mediated reality. What they know, feel, and experience as true in their lives and relationsips, in talking to others around them — none of this is ever shown, given voice, and confirmed in the corporate media and corporatist politics. This is why the moral majority, in never forming into a perceived social fact in the public mind, remains repressed and stunted. But it never really goes away, as the public continues to go further left, and so the pressure continues to build until it will explode.

      That is why the powers that be create release valves in the hope of preventing populist explosions of riot and revolt. Trials and elections serve that purpose, as does entertainment media where cathartic narratives can defuse simmering fears and anxieties. Even protests are allowed a certain level of expression, if constantly kept under control with the overbearing threat of violence and continuously managed in the public mind though mediated framings of rhetoric. But this can only accomplish so much, since it doesn’t alter the fundamental conflict of how far left is public opinion and how autoritarian is the disconnected elite.

      The only thing that could prevent the inevitable eruption into violence is if the powers that be allowed for peaceful reforms within the system. The ball is in the court. Yet the chances of the ruling elite choosing peace is highly improbable. No major positive change has happened in American history without violence, sadly. We need to hold the elite accountable because it is they, not the oppressed victims, who are choosing this outcome of violence. And at any moment, they could choose otherwise. It’s never too late, at least not until it actually is too late.

      Take this trial as an example. The authority figures overseeing the case could take it as an opportunity to begin a dialogue about reform, not only of the police but of the entire system that the police serve and are a product of. We are getting a biased jury, but those directly involved could have chosen a jury that matched and was sympathetic with the victim, rather than a jury that matched and was sympathetic with the victimizer. The judge, lawyers, local politicians, and media could have made sure to frame the issue in acknowledging that the very legal system itself is also on trial. It could’ve been taken as an opportunity to symbolize and clarify the problem while pointing to potential solutions.

      Instead, what we are seeing indicates that even now the elite are not taking seriously what is at stake and what might be the consequences of their moral failure. But sometimes it only takes one person to give voice to what others refuse to speak and, if the stars align just right, that voice gets heard by the public in sparking shared awareness. This could precipitate the formation of the implicit moral majority as explicit social fact. That brings us back to your comment, in that “if you find a person high enough on the hierarchy who can adopt your views and reform them using legal lexicon that would facilitate concrete change.”

      A lawyer or a similar public figure would have the symbolic authority to not only within the legal system but also within the public mind. To have a lawyer state what had been silenced for so long and then have that get brought into mainstream public debate — that could elicit a powerful sense of recognition in so many Americans, in finally hearing spoken out loud what was before a quiet nagging voice at the back of their mind. Then the public pressure you mentioned would become a real possibility. That could be a reawakening of radical imagination within Jefferson’s spirit of the people, the last surviving remnant of republicanism as freedom and justice, fairness and equality.

      At times, it does feel like we are finally getting closer to fulfilling the promise not only of the American Dream and the revolutionary ideals it was founded upon but, more importantly and powerfully, the promise first given form in the authorization of the Axial Age prophets. For so long, this radicalism has been dismissed as abstract ideas, unrealistic ideals, and totalitarian ideology. That is sad. We now have shown that free societies are possible, that social democracies can be effective. We are long past the point of merely debating ideological rhetoric. Yet it’s true that, in the past, humanity didn’t know how to constructively express the egalitarian impulse. All that the Axial Age prophets could do was preach and promise.

      Then later on, the peasants in their revolts took those words quite literally as applying not only to heaven but also to earth. The problem was they had no way of implementing their sense of moral outrage and moral vision. In the English Peasants’ Revolt, they killed some aristocrats and captured the king, but then didn’t know what to do next and the whole thing fell apart. Sure, the violence was less than optimal, but these were people who spent their whole lives oppressed by violence. It’s not as if the ruling class was simply going to freely stop brutalizing the desperately impoverished peasants and willingly step down from authoritarian power.

      The spirit of the people only goes so far by itself, as it is rarely accepted by the forces of power without a countering force to pose a challenge. It’s easier to speak of pacifism as an ideal from the safety of distant privilege than to act accordingly while facing down violent authoritarians who would gladly kill large numbers with no concern at all. That moral dilemma is what led the religious and pacifist Dietrich Bonhoeffer to participate in the assassination attempt of Adolf Hitler with the hope of preventing the deaths of millions. Was he wrong?

      Our present predicament is not so stark, but neither is it enitrely different. The American Empire does globally oppress, terrorizes, harm, dislocate, occupy, imprison, torture, starve, and kill probably millions of people every year — even if it is done in such a way that most Americans don’t have to see and so can pretend it’s not happening. A trial about one police officer, with a history of violence, having callously suffocated to death an innocent man is symbolic of what happens every day, over and over again in thousands of different ways. The bias of jury selection is also symbolic of how our entire society is built on, operates through, and is defended by far worse forms of bias.

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